Erwin Chemerinsky: Rationality in sentencing for cocaine

One of the great injustices of the war on drugs is laws that impose far greater punishments for crack cocaine as opposed to powder cocaine. Congress significantly reduced these disparities in federal law in the Fair Sentencing Act of 2010. Now it is time for California to eliminate these disparities under state law by enacting Senate Bill 1010, a bill pending in the Legislature, which would eliminate the differences in the way California law treats crack and powder cocaine.

There is no scientific basis for treating these two drugs differently. Crack and powder cocaine are two forms of the same drug. Crack cocaine is created when cocaine powder is processed with an alkali, typically common baking soda. Although possession or sale of crack cocaine is punished much more severely than such crimes involving powder cocaine, ironically, gram for gram, there is less active drug in crack cocaine than in powder cocaine.

When crack first came to national attention in the 1980s, some theorized that the drug was worse and more addictive than powder cocaine. This led to laws that imposed far greater punishments for crack cocaine. But studies have shown that these two forms of the drug have exactly the same physiological and psychoactive effects. There is no medical or scientific reason to treat them any differently.

The disparity in the treatment of crack and powder cocaine is not only unfair, it also has a substantial racially discriminatory effect. Simply put, powder cocaine is more likely to be used by whites, and crack cocaine by African Americans and Latinos. The result, in California and across the country, has been a great racial injustice in sentencing because the punishment for crack cocaine is dramatically more than for powder cocaine.

For example, young black men are much more likely to be arrested for crack cocaine-related offenses and thus receive harsher sentences than the predominantly white users of powder cocaine. People of color account for over 98 percent of those sent to California state prisons for possession of crack cocaine for sale. From 2005 to 2010, blacks accounted for 77.4 percent of state prison commitments for crack possession for sale, although they made up just 6.6 percent of the state’s population. Latinos account for 18.1 percent of those convicted of crack cocaine offenses, while whites are 1.8 percent of those in prison for this. By contrast, those convicted for powder cocaine offenses are overwhelmingly white.

California is one of only 12 states that retain significantly greater punishments for crack as compared to powder cocaine. Moreover, under California law a judge cannot impose a sentence of probation for possession of crack cocaine, but can for powder cocaine. At times, carefully supervised probation, conditioned on successful participation in a drug treatment program, is the most appropriate sentence. At the very least, there is no reason to treat crack and powder cocaine different in this way.

SB1010, which will soon be voted on by the California Senate, would fix this. It declares “that cocaine hydrochloride (powder cocaine) and cocaine base (crack cocaine) are two forms of the same drug, the effects of which on the human body are so similar that to mete out unequal punishment for the same crime (e.g., possession for sale of a particular form of cocaine), is wholly and cruelly unjust.” It would ensure that the punishment for possessing these drugs would be exactly the same.

Creating fairness in cocaine sentencing also would save California a great deal of money. The bipartisan Legislative Analyst’s Office estimates millions of dollars in savings for state and local governments if SB1010 becomes law, and the penalty, probation and asset forfeiture guidelines for crack cocaine are made equal to the current guidelines for powder cocaine. For example, reducing the sentences for crack cocaine and making violators eligible for probation – under exactly the same terms as powder cocaine – would decrease costs of incarceration and save California a great deal of money. California is under a court-ordered mandate to reduce its prison population and treating crack and powder cocaine the same will help to achieve this.

A broad coalition of civil rights groups has endorsed SB1010. There is simply no rational reason to treat the two forms of cocaine any differently from one another. California should follow the lead of Congress and the vast majority of states and ensure that crack and powder cocaine offenses are treated the same.

Erwin Chemerinsky is dean of the UCI School of Law.

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